Judgement

BACHAWAT, J. : Shaik Ahmad Ali was the holder of a tenure recorded in Khewat No. 4, tauzi No. 3309, Mouza Babhnaul comprising an area of 83.82 acres under the Maharaja of Dumraon. He died in 1910 leaving as his heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of Elahijan, and two sons Hamid and Mahmud and four daughters born of his first wife Nabiban. Though all the heirs of Shaik Ahmad ali were co-sharers of the tenure, the names of Hamid and Mahmud only were recorded as the tenure-holders in the record of rights published in 1911. The Maharaja 13 of 1915 against Hamid and Mahmud only and obtained a decree for rent. The other co-sharers of the tenure including Amanat were not parties to the suit. Amanat died in 1924. Before and after 1924 there were several litigations concerning the rights of the co-sharers in the tenure. Eventually, under a compromise, Najma the wife of Amanat got 2 annans 8 pies 10 krant share in the teneure. Subsequently the Maharaja of Dumraon put the decree in Rent Suit No. 13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale. In October 1928, Latafat obtained possession of the tenure though Court. In May 1939, Najma instituted Title Suit No. 127 of 1939 against Latafat, the Maharaja of Dumraon and others asking for a declaration that her share in the tenure was not affected by the sale and for partition and possession of her share and mesne profits. During the pendency of this suit, the Maharaja of Dumraon instituted Rent Suit No. 1077 of 1939 against Latafat, obtained a decree for rent and put the decree into execution. At the execution sale in November 1940, Khodaija, the second wife of Ashgar, purchased the tenure. Thereupon, Khodaija was impleaded as a party in Title Suit No. 127 of of 1939. On 9-7-1942, a decree declaring the title of Najma to her share in the tenure and a preliminary decree for partition were passed in that suit. On 9-8-1942, Khodaija obtained delivery of possession of the tenure through Court on the basis of her purchase in November 1940. On 26-2-1943, Najma died. On 10-4-1943, the appellant filed a petition in Title Suit No. 127 of 1939 praying for substitution in place of Najma on the ground that before her death Najma had made an oral gift of her share to him. On 21-4-1943, the Court passed an order substituting the appellant as plaintiff in the suit in place of Najma. On 14-6-1943, a final decree was passed in the suit. The appellant was allotted 19.54 acres of land out of the tenure. On 25-6-1943, the appellant obtained possession of the land dispossessing Khodaija. Thereafter, Khodaija instituted Title Suit No. 126 of 1944 against the appellant and others for a declaration that the decrees passed in Title Suit No. 127 of 1939 were fraudulently obtained and were not binding upon her. The trial Court dismissed the suit, on appeal, the first appellate Court decreed the suit and a second appeal was disposed of by a compromise in these terms:

"1. That the name of the plaintiff No. 1 (that is Khodaija) from the categor5y of defendants in Title Suit No. 127 of 1939 shall be expunged.

2. That the decree (in Title Suit No. 127 of 1939) will stand in other respects.

3. That the suit (that is, Title Suit No. 126 of 1944) will stand dismissed."

In 1948, Khodaija applied for restitution of the land under S. 144 of the Code of Civil Procedure. The Munsif allowed the application; on appeal, the first Appellate court dismissed it; and on second appeal, the High Court passed an order on 24-1-1949 declaring that Khodaija was entitled to restitution and remanded the case to the Munsif. On 28-6-1949, the Munsif directed restitution of 19.54 acres of land to Khodaija. On 1-7-1949, Khodaija obtained possession of the land through Court.

2. Thereafter, the appellant instituted the present suit against Khodaija and others praying for a declaration of his titl